By Lorene D. Park, J.D.
Joining the Sixth and Seventh Circuits, the Fourth Circuit has held that under the same analysis applied by the Supreme Court in Gross
, a plaintiff asserting a discrimination claim under the ADA must show that his or her disability was the “but for” cause of the challenged employment action. Consequently, summary judgment was affirmed against an ADA claim by an employee whose employer allegedly terminated her and several others due to financial difficulties. The employee’s challenge to jury instructions on the definitions of “disability” also failed, as did her argument that the $20,000 awarded on her state law claims was too low and entitled her to a new trial (Gentry v. East West Partners Club Management Co., Inc.
, March 4, 2016, Floyd, H.).
The employee was an executive housekeeper at Maggie Valley Club, supervising a staff of eight to ten people, and by all accounts was an excellent employee. In 2008, the owner hired East West to operate the club and a new general manager (GM) was hired. Meanwhile, the employee had injured her ankle in July 2007 and filed for workers’ comp. She received treatment and returned in January 2009 with no restrictions, though she continued to have pain and difficulty walking. In January 2010, her doctor concluded that she had a 30 percent permanent impairment and might require additional surgery in the future, though she could still perform her job.
Workers’ comp claim.
Soon thereafter, the club’s insurer offered to settle her worker’s comp claim and she declined, expressing concern that she would be fired if she accepted. An insurance adjuster called the GM to discuss the claim; the conversation that followed was disputed. The adjuster claimed the GM was surprised at the employee’s concerns because she was a “great worker.” He also said the club was considering layoffs due to financial problems. But the GM denied making those statements and claimed the adjuster said the insurer felt extorted by the employee and it was only a matter of time before she asserted more claims. The GM called the principals of Maggie Valley and East West and relayed his version of the conversation. He also allegedly interrogated the employee about her claim. Eventually, her workers’ comp claim settled at mediation in November 2010.
The next month, the employee was terminated in a restructuring that also eliminated the jobs of two other department heads, along with eight other employees, to reduce costs. Additional layoffs followed and, by trial, the housekeeping department had only three full-time employees, while the new housekeeping director performed the duties previously performed by the employee and two others. However, the employee claimed a Maggie Valley executive told her that the GM admitted to firing her because of the issues with her ankle and said she “could be a liability.” An EEOC investigator confirmed that the executive told him the same thing, though the executive subsequently denied making the statements and denied the GM had ever said any such thing.
Mixed results at trial.
After a trial on the employee’s disability discrimination claims under the ADA and North Carolina law, as well as her claims for sex discrimination, workers’ comp retaliation, and tortious interference with her employment contract, the jury found East West liable for workers’ comp retaliation and for tortious interference. The GM was also found liable for tortious interference. The jury found in favor of the defendants on all other claims.
ADA requires “but-for” causation.
On appeal, the employee argued that the district court erred by instructing the jury that, for purposes of her ADA discrimination claim, she had to show her disability was the “but-for” cause of her termination. She argued that Title VII’s “motivating factor” causation standard should apply. Disagreeing, the appeals court held that the Supreme Court’s decision in Gross v. FBL Financial Services, Inc.
, the High Court considered whether Title VII’s standard applied to ADEA claims and held that it did not, because unlike Title VII, the ADEA’s text does not provide that a plaintiff may establish discrimination by showing age was a motivating factor. Moreover, Congress did not add such a provision to the ADEA when it amended Title VII, even though it amended both Acts contemporaneously. Examining the ADEA, the Court ruled that discrimination “because of” age meant age was “the reason,” or the “but for” cause of the decision.
Text of ADA.
Likewise, explained the court here, the ADA’s text does not provide that a plaintiff may establish liability by showing that disability was a motivating factor in an adverse employment decision. Moreover, Congress amended the ADA at the same time it added that language to Title VII, but it did not add the “motivating factor” standard to the ADA.
The employee argued that Gross
was not controlling because the ADA (unlike the ADEA) incorporated by reference Title VII’s enforcement provision (including powers, remedies, and procedures). Disagreeing, the appeals court noted that the ADA incorporated enforcement provisions but did not
incorporate Title VII’s “unlawful employment practices” section, including the provision making mixed-motive employment practices unlawful. Moreover, to invoke the enforcement provisions, an ADA plaintiff has to allege a violation of the ADA itself, and the ADA does not provide that a violation occurs if an employer acts with a mixed motive.
Instead, the ADA’s text calls for a “but-for” causation standard. It prohibits discrimination “on the basis of” disability, and the appeals court found no meaningful textual differences between the ADA’s language and the terms “because of,” “by reason of,” or “based on”—terms that the Supreme Court has explained connote “but-for” causation. Nor did the legislative history of the ADA suggest that “on the basis of” meant something other than “but-for” causation.
Also rejected was the employee’s challenge to the jury instructions on the definitions of “disability.” Even assuming the instruction was plain error, the appeals court found that she failed to show the error affected her substantial rights. The extent of her impairment was not seriously contested at trial, and there were ample facts from which the jury could have found that her termination did not result from an impairment of her foot, regardless of how severe. She was not fired until more than three years after her injury and more than two years after her surgery; at no point did her employers complain about her ability to do her job. In fact, they considered her an excellent employee. Likewise, her challenge to the “regarded as” instruction failed because she failed to show any prejudice.
The jury awarded $10,000 against East West for workers’ comp retaliation and $5,000 against East West and the GM each for tortious interference with employment. On appeal, the employee argued that the district court erred in denying her motion to introduce evidence of East West’s insurance coverage and indemnification, and in denying her motion for a new trial on damages. She claimed the jury’s award was tainted by the defendants’ belaboring of their poor financial condition. Rejecting this challenge, the appeals court noted that the testimony concerning the club’s financial losses was central to its defense that she was terminated in order to reduce costs. Moreover, there was no evidence that the defendants claimed they could not pay the judgment or that the jury should consider their finances in determining a damages award.
The appeals court also pointed out that the jury was instructed to award the employee “fair compensation” for her damages. She failed to overcome the presumption that the jury followed this instruction. Also rejected was the employee’s argument that she was entitled to a new trial on damages because the $20,000 awarded was inadequate. Her assertion that the jury must have found that she failed to mitigate damages was purely speculative.